The settled principle of law is that the scope of proceedings
under Section 96 of the Code of Civil Procedure and Order IX
Rule XIII CPC are distinct. Order IX Rule XIII CPC confers a
wider jurisdiction, enabling the applicant to demonstrate
sufficient cause for non-appearance and seek setting aside of an
ex parte decree (Bhanu Kumar Jain v. Archana Kumar) (2005) 1 SCC 757-3J.
NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO…………………………OF 2026
(@ Special Leave Petition (Civil)No.11006 of 2021)
DEEPESH MAHESWARI AND ANR. Vs RENU MAHESWARI
AND ORS
Author: SANJAY KAROL, J.
Citation: 2026 INSC 306.
Dated: April 1, 2026
Leave granted.
2. This appeal questions the correctness of the concurrent
rejection of an application under Order IX Rule XIII Code of
Civil Procedure, 1908 (CPC) , filed by the present appellant before the First Civil Judge, Class-I, Shivpuri, Madhya Pradesh in Misc.
Case No.08 of 2014 as per order dated 14th October 2014 as
upheld by the Fourth Additional District Judge, Shivpuri, in
Misc. Appeal No.01 of 2018 in terms of order dated 10th January,
2019, and by the High Court of Madhya Pradesh at Gwalior, in
Civil Revision No.376 of 2019 by order dated 31st October 2019.
3. The respondents No.1 and No. 2, namely Renu and Jyoti
Maheswari respectively, had filed an application under Section
372 of the Indian Succession Act, 19252 to be able to receive the
retiral benefits of their father late Mr. Omprakash Maheshwari,
who passed away on 4th April 2011, from Respondent No.3-
2 372. Application for certificate.-
(1) Application for such a certificate shall be made to the District Judge by a petition signed
and verified by or on behalf of the applicant in the manner prescribed by the Code of Civil
Procedure, 1908, (5 of 1908.) for the signing and verification of a plaint by or on behalf of
a plaintiff, and setting forth the following particulars, namely:--
(a) the time of the death of the deceased;
(b) the ordinary residence of the deceased at the time of his death and, if such residence
was not within the local limits of the jurisdiction of the Judge to whom the application is
made, then the property of the deceased within those limits;
(c) the family or other near relatives of the deceased and their respective residences;
(d) the right in which the petitioner claims;
(e) the absence of any impediment under section 370 or under any other provision of this
Act or any other enactment, to the grant of the certificate or to the validity thereof if it were
granted; and
(f) the debts and securities in respect of which the certificate is applied for.
(2) If the petition contains any averment which the person verifying it knows or believes to
be false, or does not believe to be true, that person shall be deemed to have committed an
offence under section 198 of the Indian Penal Code. (45 of 1860.)
(3) Application for such a certificate may be made in respect of any debt or debts due to the
deceased creditor or in respect of portions thereof.]
Madhya Pradesh Central Electricity Distribution Company,
where the deceased had superannuated after working as a
lineman. It was their contention that they were the daughters of
the deceased and that their mother (his wife), namely Asha
Maheswari, had predeceased him on 3rd October 2006.
Respondent No.3 opposed this on the ground that in the official
records the name of his wife is one Mrs. Malti Maheswari and
therefore, only she is entitled to the benefits as may be payable
by them. The Court, having considered evidence, granted the
Succession Certificate.
4. It was to set aside this Certificate that the application under
Order IX Rule XIII CPC was filed since Mrs. Malti Maheshwari,
did not appear before the concerned court. The First Civil Judge,
Class-I, Shivpuri, rejected the application observing that an
appeal had been preferred against the grant of Succession
Certificate in which Mrs. Malti Maheshwari appeared through
counsel. As such, they could not lay challenge thereto, by way of
an application under Order IX Rule XIII CPC.
5. On appeal, the District Judge, upheld the above order
observing that the evidence on record clearly showed that Mrs.
Malti Maheshwari, was duly served and the notice mentioned the
date of hearing as 25th August 2011. No reason has been put forth
for non-appearance on the appointed day. Still further, it was
observed that since she had been party to the appeal against order
granting Succession Certificate, it was not open for her to
subsequently challenge the same by way of an application under
Order IX Rule XIII CPC.
6. In terms of the impugned judgment, the High Court
dismissed the civil revision directed against the above orders
observing as follows:-
“(11) So far as the applicant no.1 is concerned,
the respondents no.1 and 2 in their application under
Section 372 of Indian Succession Act have
specifically stated that it is the applicant no.2 who
has moved an application for payment of dues of the
deceased Om Prakash Maheswari. It was not the
case of respondents no. 1 and 2 that the applicant
no.1 had also staked his claim over the dues of Om
Prakash Maheswari. Once, the applicant no.1 had
not claimed any right in the estate of late Om
Prakash Maheswari, then it cannot be said that either
he was a necessary party or any prejudice has been
caused to him because of lapse in the public notice.
Under these circumstances, this Court is of the
considered opinion that the Courts below did not
commit any mistake in rejecting the application filed
under Order 9 Rule 13 of CPC.”
7. It is in the aforesaid circumstances that the matter has
travelled up to us. Order IX Rule XIII CPC to state the obvious
is an application made to set aside an ex parte decree. It is also
a matter of record that they appeared in the appeal preferred
against the grant of Succession Certificate. The primary
requirements of an application under Order IX Rule XIII CPC is
whether the summons were duly served and whether there is
sufficient cause that prevented the party from appearing in Court
[See Neerja Realtors Pvt. Ltd. vs. Janglu 3 (2018) 2 SCC 649 and Parimal vs. Veena (2011) 3 SCC 545.
8. It is an undisputed fact that appellant no. 1 was a minor,
aged about 12 years, at the time when the respondents initiated
proceedings for grant of a Succession Certificate. A public notice
was issued pursuant to the orders of the learned Additional
District Judge; however, the said notice did not clearly specify
that the proceedings were initiated on account of the death of Late
Mr. Omprakash Maheshwari.
The observation of the learned Additional District Judge,
vide order dated 10.01.2019, to the effect that the minor could
have, upon publication of the public notice, impleaded himself as
a party and raised objections, is wholly erroneous and perverse.
Being a minor at the relevant time, appellant no. 1 was legally
incapacitated from taking such steps. Furthermore, the
respondents were fully aware of the existence of appellant no. 1
as one of the legal heirs. Despite such knowledge, no steps were
taken to ensure the appointment of a lawful guardian to represent
the minor in the proceedings. It is only upon attaining majority
that appellant no. 1 acquired the legal capacity to challenge the
said proceedings and accordingly initiated the present action.
There is nothing on record to suggest any collusion between the
minor and his mother.
Section 372 of the Indian Succession Act, 1925 governs
applications for grant of succession certificates, whereas Section
383 provides for revocation of such certificates on specified
grounds. Where an application is defective or material facts have
been suppressed or misstated, the certificate issued pursuant
thereto is liable to be revoked under Section 383 of the Act. The
factual matrix of the present case squarely justifies invocation of
the said provision.
Additionally, there are material discrepancies in the
particulars furnished in the original application. The mother of
the minor, who is the widow of Late Mr. Omprakash
Maheshwari, was incorrectly described as the wife of one
Jitendra Jain alias Jinna. No explanation has been provided for
such a serious mis-statement, nor is there any material on record
establishing any connection between appellant no. 2 and the said
Jitendra Jain. These inaccuracies further vitiate the proceedings.
It is also pertinent to note that the minor was never impleaded as
a party in the succession proceedings, thereby depriving her of
an opportunity to be heard.
The settled principle of law is that the scope of proceedings
under Section 96 of the Code of Civil Procedure and Order IX
Rule XIII CPC are distinct. Order IX Rule XIII CPC confers a
wider jurisdiction, enabling the applicant to demonstrate
sufficient cause for non-appearance and seek setting aside of an
ex parte decree (Bhanu Kumar Jain v. Archana Kumar) (2005) 1 SCC 757-3J.
9. In the present case, the appellant filed an application under
Order IX Rule XIII CPC after dismissal of the appeal. In view of
the facts and circumstances discussed hereinabove, the
application deserves to be allowed. The High Court erred in
concluding that the minor had not asserted any right through Late
Mr. Omprakash Maheshwari, and further erred in holding that she
was neither a necessary nor a proper party. The finding that no
prejudice was caused to the minor is unsustainable in law.
Further, the High Court also failed to appreciate that a minor
cannot be expected to respond to a public notice or initiate legal
proceedings independently. The conclusions drawn by the courts
below suffer from serious legal infirmities.
10. Accordingly, the appeal is allowed. The impugned order is
quashed and set aside. Consequently, the application under Order
IX Rule XIII CPC is allowed. The ex parte order granting the
Succession Certificate is hereby quashed and set aside. The
matter is restored to its original number. The parties are directed
to appear before the competent court dealing with the succession
certificate proceedings on a date to be fixed by the court.
11. Considering that the matter pertains to the year 2011, the
parties are directed to extend full cooperation to ensure
expeditious disposal. The concerned Court is requested to decide
the matter preferably within a period of one year from the date of
appearance of the parties.
Pending application(s), if any, shall stand disposed of.
……………………………………J.
(SANJAY KAROL)
…………………………………….J.
(AUGUSTINE GEORGE MASIH)
NEW DELHI
April 1, 2026
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